[Federal Register: June 22, 2005 (Volume 70, Number 119)]
[Proposed Rules]
[Page 36060-36062]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jn05-31]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 920
[Docket No. FV05-920-1 PR]
Kiwifruit Grown in California; Relaxation of Pack Requirements
for Kiwifruit Grown in California
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule invites comments on revisions to the pack
requirements for California kiwifruit under the California kiwifruit
marketing order (order). The order regulates the handling of kiwifruit
grown in California and is administered locally by the Kiwifruit
Administrative Committee (Committee). This rule would require that
kiwifruit marked as size 39 or 42 not vary in diameter by more than \3/
8\ inch, regardless of pack type. In addition, the three tables
currently under the pack regulation would be consolidated into one. By
allowing handlers to utilize a single table for kiwifruit size
designations and size variation tolerances regardless of pack or
container, this rule is expected to simplify requirements for the
industry, reduce handler packing costs, increase grower returns, and
increase flexibility in handler packing operations.
DATES: Comments must be received by July 12, 2005.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938, E-mail: moab.docketclerk@usda.gov, or
Internet: http://www.regulations.gov. All comments should reference the
docket number and the date and page number of this issue of the Federal
Register and will be made available for public inspection in the Office
of the Docket Clerk during regular business hours, or can be viewed at:
http://www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: Shereen Marino, Marketing Specialist,
California Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street,
Suite 102B, Fresno, California 93721; Telephone: (559) 487-5901, Fax:
(559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237;
Telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing
Order No. 920 as amended (7 CFR part 920), regulating the handling of
kiwifruit grown in California, hereinafter referred to as the
``order.'' The order is effective under the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter
referred to as the ``Act.''
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This proposal will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This proposed rule invites comments on revisions to the pack
requirements for California kiwifruit under the order. This rule would
require that Size 39 and Size 42 fruit not vary in size by more than
\3/8\ inch, regardless of pack type. The Committee unanimously
recommended these changes at its March 2, 2005, meeting.
Currently, three tables are included under the pack regulation to
designate sizes and list the size variances permitted for the different
pack arrangements used in the industry. This rule would consolidate
tables into one table that would list size designations with applicable
size variation tolerances for kiwifruit regardless of the pack or
container type. This rule is expected to simplify requirements for the
industry, reduce handler packing costs, increase grower returns, and
increase flexibility in handler packing operations.
Section 920.52 of the order authorizes the establishment of pack
requirements. Section 920.302(a)(4) of the order's regulations
specifies pack requirements for fresh shipments of California
kiwifruit. Pack requirements include the specific arrangement, size,
weight, count, or grade of a quantity of kiwifruit in a particular type
and size of container.
Section 920.302 of the order's regulations specifies grade, size,
pack, and container regulations for the fresh shipment of California
kiwifruit. This section contains three tables regarding pack. One table
in Sec. 920.302(a)(4)(iii) specifies size designations for kiwifruit
packed in volume fill containers (such as bags or bulk containers).
These size designations are based on the maximum number of pieces of
fruit per 8-pound sample. Two tables in Sec. 920.302 specify size
variation tolerances. One table in Sec. 920.302(a)(4)(ii)(B) is
applicable to volume fill containers and lists size designations with
the corresponding size variation tolerance listed by diameter. The
other table in Sec. 920.302(a)(4)(ii)(A) is applicable to kiwifruit
packed in trays and lists the variation tolerance in diameter by count
(number of pieces of kiwifruit packed in a tray).
Since 1989, there have been two different size variation tolerances
for Size 39 and Size 42 kiwifruit, depending on style of pack. The
[[Page 36061]]
majority of Size 39 and Size 42 kiwifruit is initially packed in volume
fill containers and must meet a size variation tolerance of \3/8\-inch.
It has become more common for some of the fruit to then be restyled
(repacked) into trays. In fact, the current estimate is that 10 percent
of the crop is restyled into trays. All kiwifruit restyled within the
production area must be reinspected.
Currently, restyling fruit from volume fill containers into trays
may require resizing the fruit because the size variation tolerance
differs for the two containers. Fruit packed in trays that is 39 and 42
count must meet a size variation tolerance of \1/4\-inch. In order to
meet the more restrictive \1/4\-inch tolerance, handlers must resize
the fruit. Resizing is costly and slows down the restyling process. In
addition, during the initial packing process, pack styles can change
several times daily depending upon market demand. Resizing may also
reduce returns to growers. Thus, the Committee recommended changing the
size variation requirement for Size 39 and Size 42 kiwifruit from \1/4\
inch to \3/8\ inch when packed in cell compartments, cardboard fillers,
or molded trays.
The Committee also recommended revising the regulations to specify
one standard size variation tolerance of \3/8\-inch for Size 39 and
Size 42 kiwifruit, regardless of whether the fruit is packed in volume
fill containers or trays. To facilitate this change the three tables
under the pack regulation would be consolidated into one that would
list both size designations and their applicable size variation
tolerances for fruit packed in all container types. Additionally,
clarifying language that was inadvertently omitted from under the first
table (Count) in prior rulemaking would be restored. The language
clarifies that the average weight of all sample units in a lot must
weigh at least 8 pounds, but no sample unit may be more than 4 ounces
less than 8 pounds. This rule is expected to simplify requirements for
the industry, reduce handler packing costs, increase grower returns,
and increase flexibility in handler packing operations. Accordingly,
section 920.302 is proposed to be revised.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 45 handlers of California kiwifruit subject
to regulation under the marketing order and approximately 275 growers
in the production area. Small agricultural service firms are defined by
the Small Business Administration (13 CFR 121.201) as those whose
annual receipts are less than $6,000,000, and small agricultural
producers are defined as those whose annual receipts are less than
$750,000. None of the 45 handlers subject to regulation have annual
kiwifruit sales of at least $6,000,000. In addition, six growers
subject to regulation have annual sales exceeding $750,000. Therefore,
a majority of the kiwifruit handlers and growers may be classified as
small entities.
This proposed rule would relax the pack requirements currently
specified in Sec. 920.302 for kiwifruit. The rule would create one
standard size variation tolerance to be applied uniformly to all
container types. Additionally, the three tables currently under the
pack regulation would be consolidated into one. By allowing handlers to
utilize a single table for kiwifruit size designations and size
variation tolerances, regardless of pack or container this rule is
expected to simplify requirements for the industry, reduce handler
packing costs, increase grower returns, and increase flexibility in
handler packing operations. Authority for this action is provided in
Sec. 920.52 of the order, which authorizes the establishment of pack
requirements.
The impact of this change on handlers was discussed by the
Committee. Approximately 10 percent of shipments are restyled from a
volume fill container to a tray pack. Based on an industry survey,
restyling costs an average of $.07 per tray equivalent. If there is no
longer a need for handlers to resize the fruit when restyling from a
volume fill container to a tray pack, it is estimated that restyling
costs per tray equivalent would decrease to $.035 per tray equivalent.
The average of Size 39 and 42 fruit sold over a 6-year period is
approximately 22 percent of the crop. Current restyling costs are
obtained by calculating 10 percent of the average of Size 39 and 42
fruit (22 percent of the total packout) and multiplying that number by
the estimated cost per tray equivalent.
Based on a total crop of 6 million tray equivalents (te) the cost
savings for repacking/restyling would be around $9,000. This amount is
obtained by subtracting $9,240 from $18,480 from the table below, which
is the difference between the restyling costs incurred when fruit must
be resized and restyling costs when fruit does not need to be resized.
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Total Crop Sold (te).................................... 6,000,000
Total Size 39 & 42 fruit (22% of total crop) (te)....... 1,320,000
Estimated number of Size 39 & 42 fruit restyled annually 132,000
from bulk to trays (10% of total 39/42's packed) (te)..
Approximate cost to restyle Sizes 39 and 42 fruit $9,240
without rechecking/resizing for size variation
difference (0.07 cents per te).........................
Approximate cost to restyle Size 39 and 42 fruit that $18,480
requires resize for size variation difference (0.14
cents per te)..........................................
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The change would reduce packing costs since handlers would no
longer need to resize fruit to the more restrictive \1/4\-inch
tolerance in the restyling (repacking) process. The packing process
would also move more rapidly since frequent resizing adjustments would
no longer be necessary. Fewer resizing adjustments may also mean
increased returns to growers.
The Committee considered the alternative of not revising the rule,
but this was not considered viable because of the confusion currently
experienced because of differences in the size variation tolerance in
the different packs and the resulting increased packing costs. The
Committee reasoned that the only viable alternative was to create a
standard size variation tolerance regardless of pack.
This proposed rule would create one size variation standard that
would be applied uniformly to all container types as well as
consolidate the three tables currently in the pack regulation of the
order into one table. Accordingly, these actions would not impose any
[[Page 36062]]
additional reporting or recordkeeping requirements on either small or
large kiwifruit handlers. As with all Federal marketing order programs,
reports and forms are periodically reviewed to reduce information
requirements and duplication by industry and public sectors.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this proposed rule. In fact, this proposed
action would relax the current requirements under the U.S. Standards
for Grade of Kiwifruit (7 CFR 51.2335 through 51.2340) issued under the
Agricultural Marketing Act of 1946 (7 U.S.C. 1621 through 1627) with
regard to ``fairly uniform in size''.
In addition, the Committee's meeting was widely publicized
throughout the kiwifruit industry and all interested persons were
invited to attend the meeting and participate in Committee
deliberations on all issues. Like all Committee meetings, the March 2,
2005, meeting, was a public meeting and all entities, both large and
small, were encouraged to express their views on these issues. Finally,
interested persons are invited to submit information on the regulatory
and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
A 20-day comment period is provided to allow interested persons to
respond to this proposal. Twenty days is deemed appropriate because
this rule should be in place by September 10, 2005, which would be
prior to the start of the 2005/2006 crop year. All written comments
timely received would be considered before a final determination is
made on this matter.
List of Subjects in 7 CFR Part 920
Kiwifruit, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 920 is
proposed to be amended as follows:
PART 920--KIWIFRUIT GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 920 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. In Sec. 920.302, paragraph (a)(4) is revised to read as
follows:
Sec. 920.302 Grade, size, pack, and container regulations.
(a) * * *
(4) Pack requirements. (i) Kiwifruit packed in containers with cell
compartments, cardboard fillers, or molded trays shall be of proper
size for the cells, fillers, or molds in which they are packed. Such
fruit shall be fairly uniform in size.
(ii) (A) When kiwifruit is packed in any container, it would be
subject to the size designation, maximum number of fruit per 8-pound
sample, and the size variation tolerance specified as follows:
Size Designation and Size Variation Chart
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Column 2--
maximum number
Column 1--size designation of fruit per 8- Column 3--fruit size variation tolerance
pound sample (diameter)
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18 or larger................................... 25 \1/2\-inch (12.7 mm).
20............................................. 27 \1/2\-inch (12.7 mm).
23............................................. 30 \1/2\-inch (12.7 mm).
25............................................. 32 \1/2\-inch (12.7 mm).
27/28.......................................... 35 \1/2\-inch (12.7 mm).
30............................................. 39 \1/2\-inch (12.7 mm).
33............................................. 43 \3/8\-inch (9.5 mm).
36............................................. 46 \3/8\-inch (9.5 mm).
39............................................. 49 \3/8\-inch (9.5 mm).
42............................................. 53 \3/8\-inch (9.5 mm).
45 or smaller.................................. 55 \1/4\-inch (6.4 mm).
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(B) The average weight of all sample units in a lot must weigh at
least 8 pounds, but no sample unit may be more than 4 ounces less than
8 pounds.
(C) Not more than 10 percent, by count of the containers in any lot
and not more than 5 percent, by count, of kiwifruit in any container,
(except that for Sizes 42 and 45 kiwifruit, the tolerance, by count, in
any one container, may not be more than 25 percent) may fail to meet
the size variation requirements of this paragraph.
(iii) All volume fill containers of kiwifruit designated by weight
shall hold 19.8-pounds (9-kilograms) net weight of kiwifruit unless
such containers hold less than 15 pounds or more than 35 pounds net
weight of kiwifruit.
* * * * *
Dated: June 16, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-12254 Filed 6-21-05; 8:45 am]
BILLING CODE 3410-02-P